This Note focuses on the application of 35 U.S.C. ï¿½ 112ï¿½s ï¿½written descriptionï¿½ disclosure requirement to software. After tracing the contours of the modern written description requirement, it addresses the seemingly-inconsistent treatment of software and biotechnology inventions under ï¿½ 112. The Note argues that while functional written descriptions are generally held to be insufficient for biotechnology or DNA inventions (ï¿½Gene X does Yï¿½ does not pass muster), courts will allow inventions involving software to be claimed via functional descriptions (ï¿½Program X does Yï¿½ is sufficient)ï¿½a much lower descriptive bar. The note concludes that the relative predictability of software development as well as the inherently functional nature of software description account for this differing treatment, and that biotechnology inventions will require less burdensome disclosure as the predictability of that field increases.
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